Bytska v. Swiss Air Line Ltd

Filing 189

MEMORANDUM Opinion and Order signed by the Honorable Edmond E. Chang. For the reasons stated in the Opinion, Defendant Swiss International Air Line Ltd.'s motion 162 for summary judgment is granted. A separate AO-450 judgment will be entered. Status hearing of 04/03/2019 is vacated. Civil case terminated. Emailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
NINA BYTSKA,

)
)
Plaintiff,
)
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v.
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)
)
SWISS INTERNATIONAL AIR LINE LTD., )
)
Defendants.
)

No. 15 C 00483
Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
This case arises from the dread of every airline traveler: missing a connecting
flight. On January 19, 2013, Nina Bytska missed her connecting Swiss International
(“Swiss”) flight to Chicago, Illinois, after her Ukraine International Airlines (UIA)
flight from Kiev to Zurich was delayed. She filed this lawsuit against Swiss, alleging
a violation of Article 19 of the Montreal Convention and EU Regulation 261. R. 1,
Compl.1 Bytska later amended her complaint and added UIA as a defendant. R. 5,
Am. Compl. Eventually, UIA was dismissed entirely, and so were the EU Regulation
claims. R. 55, Order. Bytska then filed a second amended complaint, alleging that
Swiss violated both Article 17 and 19 of the Montreal Convention. R. 133, Second Am.
Compl. Swiss successfully moved to dismiss the Article 17 claim. R. 147, Minute
Entry. Now, all that remains is the Article 19 Montreal Convention claim against

1The

Court has subject matter jurisdiction under 28 U.S.C. § 1331. Citations to the
record are noted as “R.” followed by the docket number and the page or paragraph number.

Swiss. Swiss moves for summary judgment on this remaining claim. R. 163, Def. Mot.
As explained below, the motion is granted.
I. Background
In deciding a motion for summary judgment, the Court must view the evidence
in the light most favorable to the non-moving party; here, that is Bytska. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Bytska was
scheduled to arrive in Chicago on January 19, 2013, after a trip to Ukraine. R. 164,
DSOF ¶ 21.2 To get back to Chicago, she had to take two flights: first, UIA flight PS
471 out of Kiev; and then Swiss flight LX 008 out of Zurich.3 Id. The first flight, UIA
PS 471, was scheduled to depart Kiev at 9:55 a.m. local time, and arrive in Zurich at
11:50 a.m. local time. Id. Bytska’s second flight, Swiss LX 008, was scheduled to
depart Zurich at 12:55 p.m. local time. Id. That meant Bytska had exactly 65 minutes
from the time flight PS 471 was scheduled to land in Zurich until the time flight LX
008 was scheduled to depart. Id. She was then supposed to arrive in Chicago at 3:55
p.m. local time. Id. But things did not go as planned.
It started with a weather delay in Kiev. Due to overnight snow and freezing
precipitation, flight PS 471 was delayed 26 minutes while the airport authority
conducted runway de-icing operations, and the flight’s captain engaged the onboard
engine anti-ice system to remove ice from the engine blades. DSOF ¶ 23. Then, the

2Citations

to the parties' Local Rule 56.1 Statements of Fact are “DSOF” for Swiss's
Statement of Facts [R. 164]; “PSOF” for Bytska's Statement of Additional Facts [R. 184-3];
“Pl. Resp. DSOF” for Bytska's Response to Swiss's Statement of Facts [R. 184-2]; “Def. Resp.
PSOF” for Swiss's Response to Bytska's Statement of Additional Facts [R. 186].
3UIA flight PS 471 operated as a codeshare flight with three airlines, including Swiss.
DSOF ¶ 22.

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flight was delayed another 33 minutes while de-icing fluid was sprayed on the plane.
Id. Flight PS 471 finally tookoff at 10:54 a.m. local Kiev time, 59 minutes behind
schedule. Id; DSOF ¶ 25. That meant Bytska would now only have six minutes in
between flights,4 as opposed to 65, assuming that the flight took the scheduled
amount of time in the air. DSOF ¶ 21; Pl. Resp DSOF ¶ 21.
There was another obstacle: the Zurich Airport Authority required all
passengers to be rescreened at security. DSOF ¶ 30. That meant that after
deboarding the UIA plane, Bytska had to walk to the terminal entrance, wait in line
at security, be rescreened by security, and then walk back to the departure gate for
Swiss flight LX 008. Id. On top of it all, it was peak travel time. Id. After all that,
Bytska finally made it to her departure gate. DSOF ¶ 32.
Once she arrived at the gate, she understood from an airline representative
that the gate was closed and boarding was over. DSOF ¶ 32. The representative
instructed her to go back to the registration desk to have her ticket re-registered. Id.
Bytska followed this instruction. DSOF ¶ 36. At the registration desk, an airline
representative rebooked Bytska on the next available flight to Chicago—which was
not until the next day—and gave her meal, hotel, and telephone vouchers at no cost

4Swiss

states that flight PS 471 arrived in Zurich at 12:47 p.m., DSOF ¶ 28, meaning
it arrived eight minutes, instead of six minutes, before Bytska’s next flight was scheduled to
depart. Bytska denies this but does not offer any responsive evidence as to a different arrival
time in her statement of facts. Pl. Resp. DSOF ¶ 28. Bytska, however, admits that flight PS
471 departed 59 minutes behind schedule at 10:54 a.m. local Kiev time, Pl. Resp. DSFO ¶ 25,
and admits that flight LX 008 was scheduled to depart at 12:55 p.m. local Zurich time, id.
¶ 21. Reading the facts in Bytska’s favor, the Court errs on the side of less time, and assumes
she had six rather than eight minutes in between her flights.

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to her. Id. Despite these vouchers, Bytska spent an additional $230 on food, clothing,
and toiletries during her one-night stay at the Zurich Airport. DSOF ¶ 38.
Bytska finally arrived in Chicago one day later than scheduled, on Sunday,
January 20, 2013. DSOF ¶ 39. When she arrived, she called her employer and advised
them she would not be able to work the next day due to exhaustion and an upset
stomach. Id. Two years later, Bytska filed this lawsuit claiming that she is entitled
to compensation for economic and emotional damages, and lost wages resulting from
the delay. Second Am. Compl. ¶ 57.
II. Legal Standard
Summary judgment must be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In evaluating
summary judgment motions, courts must “view the facts and draw reasonable
inferences in the light most favorable to the” non-moving party. Scott v. Harris, 550
U.S. 372, 378 (2007) (cleaned up).5 The Court may “not weigh conflicting evidence or
make credibility determinations,” Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d
697, 704 (7th Cir. 2011) (cleaned up), and must consider only evidence that can “be
presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).

5This

opinion uses (cleaned up) to indicate that internal quotation marks, alterations,
and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations,
18 Journal of Appellate Practice and Process 143 (2017).

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The party seeking summary judgment has the initial burden of showing that there is
no genuine dispute and that they are entitled to judgment as a matter of law.
Carmichael v. Village of Palatine, 605 F.3d 451, 460 (7th Cir. 2010); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Wheeler v. Lawson, 539 F.3d 629, 634 (7th
Cir. 2008). If this burden is met, the adverse party must then “set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.
III. Analysis
Swiss argues that Bytska’s claim under Article 19 cannot survive summary
judgment for three reasons: (1) the UIA flight PS 471 weather delay was out of Swiss’s
control; (2) Swiss took all reasonable measures to rebook Bytska on the next available
flight; and (3) Swiss gave Bytska complimentary hotel, meal, and telephone vouchers
for use during her layover. Def. Mot. at 2. Bytska responds that flight PS 471’s
delayed departure is not relevant. Pl. Resp. at 7-8. Instead, Bytska argues, the cause
of her delay was not being allowed to board flight LX 008 despite arriving when
boarding was still, allegedly, in process. Id. Bytska argues, therefore, that under
Article 19 of the Montreal Convention, Swiss was required to allow her to board
instead of rebooking her. Id. at 10-13. But this argument relies on a new, never-before
mentioned, assertion of fact that Bytska included in her declaration in response to
summary judgment: specifically, when she got to the departure gate, “the boarding
process for Swiss departing flight LX 008 was still undergoing.” Id. (citing R. 184-4,
Bytska Decl. ¶¶ 8-15). Swiss argues that Bystka’s declaration should be excluded

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because it contradicts her prior deposition testimony. Def. Reply at 10. The Court
agrees.
Absent an explanation for the inconsistency, a party cannot create a “sham
affidavit”—one “whose conclusions contradict prior deposition or other sworn
testimony”—simply to get past summary judgment. Dunn v. Menard, Inc., 880 F.3d
899, 910 (7th Cir. 2018) (quoting Buckner v. Sam’s Club, Inc., 75 F.3d 290, 292 (7th
Cir. 1996)). But that is exactly what Bytska tries to do here. For the first time since
the start of this litigation over four years ago, Bytska alleges that when she arrived
at the gate for the Swiss flight, boarding was still in process. Bytska Decl. ¶9. Not
once before filing the declaration in response to the summary judgment motion did
Bytska mention this fact.
More importantly, the assertion of fact contradicts Bytska’s deposition in this
case. District courts may disregard supplemental affidavits that “contradict prior
depositions or sworn testimony.” Dunn, 880 F.3d. at 910; see also Kopplin v.
Wisconsin Cent. Ltd., 914 F.3d 1099, 1103 (7th Cir. 2019) (“[A] party may not create
an issue of fact by submitting an affidavit whose conclusions contradict prior
deposition or other sworn testimony.”) (cleaned up). To be sure, this principle must
be applied with care. See Castro v. DeVry Univ., Inc., 786 F.3d 559, 571 (7th Cir. 2015)
(“This principle must be applied with great care, though, because summary judgment
is not a tool for deciding questions of credibility.”); see also Flannery v. Recording
Indus. Ass'n of Am., 354 F.3d 632, 638 (7th Cir. 2004) (quoting Bank of Ill. v. Allied
Signal Safety Restraint Sys., 75 F.3d 1162, 1169–70 (7th Cir.1996)) (“A definite

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distinction must be made between discrepancies which create transparent shams and
discrepancies which create an issue of credibility or go to the weight of the evidence.”)
(cleaned up). Credibility and weight are issues of fact for the jury, and Courts must
be careful not to “usurp the trier of facts’ role” when excluding affidavits. Castro, 786
F.3d at 571-72. For this reason, the rule against contradictory affidavits is triggered
only when the statements are “inherently inconsistent.” Id. at 571.
That is the case here. During her deposition, Bytska testified that when she
got to the departure gate, “from what [she] understood, the gate [was closed]” and
“boarding [was] over.” R. 122-1, Bytska Dep. Tr. at 71:15-20, 72:6-10. It is true that
Bytska also testified that she saw a plane parked at the gate and believed that it was
Flight LX 008. Bytska Dep. Tr. at 72:11-74:4; 81:12-83:11. But whether or not flight
LX 008 was in fact parked at the departure gate, Bytska testified that she
“understood” boarding was “over” and the gate was “closed.” Bytska Dep. Tr. at 71:1520, 72:6-10. Now, contrary to this testimony, Bytska tries to say that boarding was
not actually over and that she personally observed passengers boarding Swiss flight
LX 008. Bytska Decl. ¶¶ 8-15. This is the kind of inherent inconsistency that is barred
by the rule against contradictory affidavits.
To be sure, there are exceptions to the rule: a party may introduce an affidavit
that contradicts prior testimony if the affidavit explains any discrepancies, mistakes,
or ambiguous testimony in earlier depositions. See Kopplin, 914 F.3d at 1103. But
none apply here. The question that prompted Bytska’s deposition testimony was
straightforward: “Eventually you got to the gate … what happened then?” Bytska

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Dep. Tr. at 71:12-14. There was nothing ambiguous or confusing about this question
or Bytska’s answer to it that would require clarification. See Kopplin, 914 F.3d at
1103 (excluding a contradictory affidavit where clarification was not necessary
because the testimony was not ambiguous or confusing). Nor does Btyska’s
declaration offer any explanation for why she previously testified that she
“understood” boarding was over and the gate was closed. So she cannot now offer the
declaration and have a do-over.
With that concession in place, the only remaining issue is whether Swiss is
liable for Bytska’s out-of-pocket economic damages under Article 19.6 Swiss argues
that rebooking Bytska on the next available flight alone absolves it of any liability
under Article 19, and that the vouchers it gave Bytska were simply complimentary
add-ons not required by Article 19. Def. Motion at 16. Bytska’s only argument in
response is that Swiss should have and could have allowed her to board flight LX 008.
Pl. Resp. at 13. But that argument has already been rejected because it is premised
on the contradictory affidavit. So the Court discusses Article 19’s requirements
without the benefit of any argument from Bytska.
Article 19 of the Montreal Convention sets forth an airline’s liability for
damages caused by delays. In relevant part, the article first sets forth the general

6In

addition to economic damages, Bytska seeks damages for “spoliation of her
memorable trip, physical injury, loss of wages, physical discomfort, [and] loss of time.” Second
Am. Compl. ¶ 57. Swiss argues, and Bytska does not refute, that only economic damages are
recoverable under the Montreal Convention. See Zubko v. Aeromexico, 2018 WL 3732688, at
*2 (N.D. Ill. Aug. 6, 2018) (“[F]ederal courts have ruled that Article 19 allows for recovery of
economic damages only and does not permit compensation for non-economic damages.”)
(collecting cases).

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liability rule and then explains how the airline can exempt itself from a damages
award:
The carrier is liable for damage occasioned by delay in the carriage by air of
passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for
damage occasioned by delay if it proves that it and its servants and agents took
all measures that could reasonably be required to avoid the damage or that it
was impossible for it or them to take such measures.
Montreal Convention Art. 19. Courts in this district have concluded that “to satisfy
Article 19’s requirement that all reasonable measures required to avoid the delay be
taken, the defendant carrier must show that, on the whole, it took measures
reasonably available and reasonably calculated to prevent the subject loss.”
Pumputyte v. United Airlines, Inc., 2018 WL 1240314, at *3 (N.D. Ill. Mar. 9, 2018)
(quoting Dochak v. Polskie Linie Lotnicze LOT S.A., 2017 WL 2362570, at *8 (N.D.
Ill. May 30, 2017)); Bernfeld v. US Airways, Inc., 2016 WL 1583057, at *2 (N.D. Ill.
Apr. 20, 2016)); Giannopoulos v. Iberia Lineas Aereas de Espana, S.A., Operadora,
Sociedad Unipersonal, 2012 WL 5499426, at *4 (N.D. Ill. Nov. 9, 2012). The carrier
need not show that it took “every possible precaution”; rather, it “need only show that
it took all precautions that, in sum, were appropriate to the risk.” Id.
As a preliminary matter, it is not clear whether the reasonable-measures
defense in Article 19 requires a carrier to simply minimize the delay, that is, rebook
a passenger (as Swiss argues), or instead do something more to minimize the
passenger’s damages caused by the delay, for example, provide a passenger with food
and hotel vouchers. In other words, is minimizing the delay sufficient to “avoid the
damage,” or is more, such as providing vouchers, required? Neither the Seventh

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Circuit nor courts in this district have addressed this question. And the Court need
not do so for this case, because Bystka does not attempt to refute Swiss’s argument.
Plus, Swiss did do more here.
Swiss not only rebooked Bytska on the next available flight, it also provided
her with hotel, meal, and telephone vouchers. DSOF ¶ 36; Pl. Resp. DSFO ¶ 36. This
was a reasonable measure to take under the circumstances. Outside of her
contradictory declaration, Bytska does not identify any alternative reasonable
measure Swiss could have taken to minimize her damages. Bytska provides only a
single, vague sentence that contends that Swiss’s measures were unreasonable: Swiss
was “indifferent to [her] travel-related needs,” Bytska Decl. ¶ 1. But this is just too
vague of a statement to rebut Swiss’s evidence. See Harris N.A. v. Hershey, 711 F.3d
794, 798 (7th Cir. 2013) (“A mere scintilla of evidence in support of the nonmoving
party's position is not sufficient; there must be evidence on which the jury could
reasonably find for the non-moving party.”). Given the evidence Swiss provided about
food, dining, and telephone vouchers, a reasonable jury can only find that the
measures Swiss took were reasonable to avoid the damages caused by the delay.

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IV. Conclusion
For the reasons set forth above, the Court grants Swiss’s motion for summary
judgment. Final judgment will be entered. The status hearing of April 3, 2019 is
vacated.

ENTERED:

s/Edmond E. Chang
Honorable Edmond E. Chang
United States District Judge
DATE: March 28, 2019

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